[2014] FWC 2838
The attached document replaces the document previously issued with the above code [2014]
FWC 2838 on 30 April 2014.
In paragraph [11] the Applicant’s name has been corrected to Ms Oratis.
Minor grammatical amendments have been made to paragraph [11] and [16].
Renee Mooney
Associate to Commissioner Bissett
Dated 30 April 2014
1
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Emily Oratis
v
Melbourne Business School
(U2013/14884)
COMMISSIONER BISSETT MELBOURNE, 30 APRIL 2014
Application for relief from unfair dismissal - Permission to be represented by a 'lawyer or
paid agent' pursuant to s.596 of the Fair Work Act 2009.
[1] Ms Emily Oratis has made an application pursuant to s.394 of the Fair Work Act 2009
(the Act) for relief from unfair dismissal. The Melbourne Business School (MBS) has sought
permission to be represented in the proceedings pursuant to s.596(2) of the Act.
[2] Written submissions were received from each of the parties on the question of whether
permission should be granted.
Legislative provisions
[3] Section 596 of the Act states:
596 Representation by lawyers and paid agents
(1) Except as provided by subsection (3) or the procedural rules, a person may be
represented in a matter before the FWC (including by making an application or
submission to the FWC on behalf of the person) by a lawyer or paid agent only with
the permission of the FWC.
(2) The FWC may grant permission for a person to be represented by a lawyer or paid
agent in a matter before the FWC only if:
(a) it would enable the matter to be dealt with more efficiently, taking into
account the complexity of the matter; or
(b) it would be unfair not to allow the person to be represented because the
person is unable to represent himself, herself or itself effectively; or
[2014] FWC 2838 [Note: An appeal pursuant to s.604 (C2014/4266) was
lodged against this decision - refer to Full Bench decision dated 11 June
2014 [[2014] FWCFB 3869] for result of appeal.]
DECISION
E AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/html/2014FWCFB3869.htm
[2014] FWC 2838
2
(c) it would be unfair not to allow the person to be represented taking into
account fairness between the person and other persons in the same matter.
Note: Circumstances in which the FWC might grant permission for a person to be
represented by a lawyer or paid agent include the following:
(a) where a person is from a non-English speaking background or has difficulty reading
or writing;
(b) where a small business is a party to a matter and has no specialist human resources
staff while the other party is represented by an officer or employee of an industrial
association or another person with experience in workplace relations advocacy.
MBS Submissions
[4] MBS submits that the grant of permission would enable the matter to be dealt with
more efficiently, taking into account the complexity of the matter (s.596(2)(a)) and that it
would be unfair not to allow the Respondent to be represented because the Respondent is
unable to effectively represent itself (s.596(2)(b)).
[5] MBS submits that it intends to run a jurisdictional issue (that the dismissal was a
genuine redundancy) which is likely to create a degree of complexity. This is compounded by
the evidence Ms Oratis seeks to introduce (as indicated by the material filed by her and
Orders granted for the production of further documents). The extensive material raises issues
of admissibility of material that will add to the complexity of the matter.
[6] MBS rely on the decision of Richards SDP in Communications, Electrical, Electronic,
Energy, Information, Postal, Plumbing and Allied Services Union of Australia v UGL
Resources Pty Limited (Project Aurora)1 and that of Leary DP in O’Grady v Royal Flying
Doctor Service of Australia2 in support of its application.
[7] MBS also submit that it is unable to represent itself effectively as the General Manager
Human Resources (GM HR) will be a witness in the proceedings and it does not employ
others with the expertise to represent it. In this respect it is not a member of an employer
organisation and it would therefore be unfair if permission were not granted. MBS says it has
two other HR staff, neither of whom have the expertise necessary to deal with a matter such
as this before the Commission.
Ms Oratis’ submissions
[8] Ms Oratis objects to permission being granted on the grounds that there are no unduly
complex issues raised in the application and the Respondent employs other HR staff and
faculty experts in negotiation, HR and contract and legal issues such that MBS should be
capable of representing itself.
[9] Ms Oratis submits that the complexity in the matter asserted by MBS has been caused
by its actions. Ms Oratis submits that MBS (and the Commission) is capable of dealing with
the matters that will arise in the hearing without the need for MBS to be represented by a
lawyer.
[2014] FWC 2838
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[10] Ms Oratis says that she is not being represented in the hearing and, although the matter
is not complex, unfairness would arise for her if MBS was granted permission.
[11] Ms Oratis submits that it is inevitable that the head of HR in an organisation would be
involved to some degree in a restructure. She submits that MBS has a number of other HR
staff. Further, if the involvement of the GM HR in a restructure, and hence his or her
involvement as a witness in any unfair dismissal matter arising from that restructure, is
grounds for legal representation to be granted it will always place an applicant employee at a
disadvantage.
[12] Ms Oratis submits that the matter would run more smoothly and fairly if permission
was not granted.
Consideration
[13] It is well established that in order to exercise the discretion available to the
Commission to grant permission to be represented one of the conditions in s.596(2) must first
be met. Such condition having been met does not them make representation automatic but still
requires the exercise of discretion on the part of the Commission.
[14] In Warrell v Walton3 the Court said:
[24] A decision to grant or refuse “permission” for a party to be represented by “a
lawyer” pursuant to s 596 cannot be properly characterised as a mere procedural
decision. It is a decision which may fundamentally change the dynamics and manner in
which a hearing is conducted. It is apparent from the very terms of s 596 that a party
“in a matter before FWA” must normally appear on his own behalf. That normal
position may only be departed from where an application for permission has been
made and resolved in accordance with law, namely where only one or other of the
requirements imposed by s 596(2) have been taken into account and considered. The
constraints imposed by s 596(2) upon the discretionary power to grant permission
reinforce the legislative intent that the granting of permission is far from a mere
“formal” act to be acceded to upon the mere making of a request. Even if a request for
representation is made, permission may be granted “only if” one or other of the
requirements in s 596(2) is satisfied. Even if one or other of those requirements is
satisfied, the satisfaction of any requirement is but the condition precedent to the
subsequence exercise of the discretion conferred by s 596(2): i.e., “FWA may grant
permission...”. The satisfaction of any of the requirements set forth in s 596(2)(a) to (c)
thus need not of itself dictate that the discretion is automatically to be exercised in
favour of granting “permission”.
Complexity
[15] Whilst this is a jurisdictional matter I am not convinced that that matter, on its own
creates a level of complexity such that permission should be granted. Ultimately the
determination of the jurisdictional issue will rest on contested factual matters.
[16] However, what cannot be divorced from this is the complexity that does arise in
dealing with the admissibility of the extensive material filed by Ms Oratis. Having granted the
[2014] FWC 2838
4
Order, I am also aware of the material sought to be subpoenaed and of the associated matters
raised by Ms Oratis.
Fairness to the Respondent
[17] Whilst I accept the that GM HR for MBS will be a witness in these proceedings that
cannot, on its own, be a satisfactory reason for the grant of permission to appear. I agree with
the submission of Ms Oratis that, if that were the case it would create an almost automatic
right for an employer in any matter where its HR area is involved in a dismissal to be
represented. This is not the intention of the Act.
[18] MBS is a large employer. It has over 200 employees. It is suggested that is has a
number of HR staff and extensive expertise amongst its employees. Whilst Ms Oratis says
MBS has a substantial number of faculty experts, I do not accept that I should take into
account the skills of those employees of MBS who are engaged for their academic expertise in
determining if MBS is capable of representing itself.
[19] I note that MBS is a school in the Faculty of Business and Economics in the
University of Melbourne. To that extent it would suggest that there is wider expertise within
the University available to MBS beyond the GM HR. However, no submissions have been
received on this matter. I have therefore not taken it into account in making my decision.
Conclusion
[20] I am satisfied that, given the complexity of the matter - caused in part by the extensive
material sought to be relied on the by the Applicant - that the matter could be dealt with more
efficiently if permission to be represented was granted to MBS. It should be noted that I do
not consider that it would be unfair to MBS not to allow it to be represented.
[21] In this case I am satisfied that I should exercise my discretion and grant permission to
MBS to be represented in the matter.
[22] Permission is therefore granted to MBS in accordance with s.596 of the Act to be
represented in the hearing of the above matter.
COMMISSIONER
1 [2012] FWA 2966.
2 [2010] FWA 1143.
3 [2013] FCA 291.
Printed by authority of the Commonwealth Government Printer
THE FAIR WORK M$ ISSION THE
[2014] FWC 2838
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Price code C, PR550124
